The Bill of Rights Committee, one of the 10 committees into which the
convention divided for purposes of drafting various articles, id. at 90, 100, proposed a
section modeled on Article I, section 19, of the Indiana Constitution, guaranteeing that
"[i]n all criminal cases whatever the jury shall have the right to determine the law and the
facts." Id. at 310. Matthew Deady, chair of the convention and a judge, objected. He
offered an amendment reading, "In all trials by a jury the court shall decide the law, and
the jury the facts." Id. at 311. This proposal moved another influential delegate, Thomas
Dryer, editor of The Oregonian, to remark in rebuttal that "[e]very juryman of sense could
understand the law and judge of it just as well as any judge who ever sat upon the bench."
Id. at 312. Dryer warned that allowing judges to supersede juries was tantamount to
establishing a "judicial monarchy." Id. at 314. Ultimately, the delegates reached a
compromise, creating what is now Article I, section 16: "In all criminal cases whatever,
the jury shall have the right to determine the law, and the facts under the direction of the
Court as to the law, and the right of new trial, as in civil cases."

Further, to the extent that the Oregon Constitution distinguishes between
the sanctity of civil and criminal jury determinations, the former receives more explicit
protection: Article I, section 17, specifically announces that "[i]n all civil cases, the right
of Trial by Jury shall remain inviolate," and Article VII (Amended), section 3, guarantees
that,

"[i]n actions at law, * * * the right of trial by jury shall be
preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless * * * there is no
evidence to support the verdict."

Article I, section 16, quoted above, which deals with juries in criminal cases, does so by
referring to civil juries, using their prerogatives as the benchmark.

Modern Oregon courts continue to demonstrate extreme respect for the
jury's function in civil cases by using juror independence as the basis for a variety of
limits on judicial encroachment. For example, respect for the jury's independence
underlies the limit on appellate courts' review of fact issues in civil cases to whether there
is anyevidence to support them. Brown v. J.C. Penney Co., 297 Or 695, 705, 688 P2d
811 (1984). Similarly, the Supreme Court has recently observed that a jury's
determination of the amount of punitive damages is a fact question and therefore immune
from challenge under the state constitution. Parrott v. Carr Chevrolet, Inc., 331 Or 537,
551, 17 P3d 473 (2001). The right to a civil jury trial also provides the basis for Oregon's
bar against some statutory damage caps. Lakin v. Senco Products, Inc., 329 Or 62, 81,
987 P2d 463 (1999).

This concern for a jury trial in a civil case includes by necessary implication
a concern that the requisite majority of the jury determine the facts without undue
influence or coercion, which, in turn, underlies proscriptions against judicial comments or
instructions on the evidence or matters of fact, ORCP 59 E, the prohibition of
communications with the jury after deliberations have begun, ORCP 59 C, and, most
pertinently, the right of the parties to a new trial when "it satisfactorily appears that there
is no probability of an agreement" amongst the current members of the jury. ORCP 59
F(1)(a). It also provides the prudential basis for the exercise of our supervisory powers to
apply the rule announced in Marsh in the civil as well as criminal context. See State v.
Lakeside, 277 Or 569, 588, 561 P2d 612 (1977), aff'd 435 US 333, 88 S Ct 1091 (1978)
(recognizing supervisory power of appellate courts over administration of justice in trial
courts); see also id. at 590 (Denecke, C. J., dissenting) (citing Marsh, 260 Or at 435-44,
as an example of the exercise of supervisory power).

"We are convinced, however, that the 'Allen charge,' even when 'modified'
and 'balanced,' carries a substantial potential for coercion, even though it
may not be possible to demonstrate such coercion in a given case. * * *
Indeed, there is considerable merit to the contention that * * * the
possibility of a hung jury based upon an honest difference in opinion is part
and parcel of our jury system.

"For all of these reasons, we agree with the view that the giving of
the 'Allen charge,' even when 'modified' and 'balanced,' involves so many
'pitfalls' and is such an invitation to error as to cause more trouble in the
administration of justice than it is worth. We thus agree with those courts
which have disapproved the future use of such supplemental instructions to
deadlocked juries[.]" 260 Or at 442-43.

The court instructed that any future instructions to a deadlocked jury should be based on
the uniform instruction approved by the ABA:

"It is your duty, as jurors, to consult with one another, and to
deliberate with a view to reaching an agreement if you can do so without
violence to individual judgment. Each of you must decide the case for
yourself, but do so only after an impartial consideration of the evidence in
the case with your fellow jurors. In the course of your deliberations, do not
hesitate to re-examine your own views, and change your opinion, if
convinced it is erroneous. But do not surrender your honest conviction as to
the weight or effect of evidence solely because of the opinion of your
fellow jurors, or for the mere purpose of returning a verdict." Id. at 443
n 58.

In addition to this general guidance, Marsh also contains more specific
instruction. It teaches that, to determine if instructions are coercive, a court should take
into account "both the language of the particular instruction and the factual setting or
context in which it was given." Id. at 432-33. Regarding the particular language of the
instruction, the probability of impropriety increases when: (1) the instruction emphasizes
persuading the members of the minority of the jury to reconsider their views in light of
the majority's position; (2) the charge is not balanced by an emphasis on adhering to
conscientiously held opinions; (3) the instruction refers to the necessity or expense of a
retrial or to the fact that another jury will hear the same evidence and be no better
qualified to decide the case; and most importantly, (4) the instruction informs the jury
that it has an obligation to continue deliberating or that a mistrial will not be declared. Id.
at 425-27. Contextual facts indicating impropriety are: (1) the evidence was in, or close
to, equipoise; (2) the trial court knew of the numerical split of the deadlock or which way
the jury was leaning, or both; and (3) the jury deliberated for a long time before the
instruction was given or reached a verdict shortly thereafter or, most tellingly, both. Id. at
428-29.

In this case, we begin with the instruction's language itself. In its favor, the
instruction did not suggest that the minority jurors should reconsider their votes; rather it
encouraged all jurors to "be open minded and to continually reevaluate your position,"
and not to "sacrifice your honest opinion." Nonetheless, the instruction deviated
significantly from the uniform instruction. The trial court added repeated references to
"the importance of resolving the case," urging that the case "has got to be resolved."
More important, it repeatedly referred to the expense and burden of a retrial. That is an
improper consideration for a deadlocked jury and is potentially coercive. See Marsh, 260
Or at 436. However, reference to a retrial is only one of four factors identified in Marsh
as contributing to the facial coerciveness of an instruction. In the absence of the other
three, we cannot say that the instruction as a whole, id. at 436, is unduly coercive on its
face.

Even an instruction more balanced and neutral than this one, however, may
have a coercive effect under the circumstances in which it is given. Marsh, 260 Or 425
(noting that "the extent to which such an instruction may be coercive depends largely
upon the factual context or setting in which the charge is given"); Hutchison, 142 Or App
at 60 ("The setting in which the instruction was given here compromised the instruction's
neutrality."). In Marsh, the court discounted contextual factors such as the relative weight
of evidence and the time taken after the instruction to reach a verdict in light of
countervailing factors: The jury was evenly split, and hence there was no true "minority"
to coerce into reaching a verdict, and the jury returned its verdict after re-instruction on an
element of substantive law, indicating that the jury's deadlock may have been due to
different understandings of the legal arguments rather than an inability to agree on the
facts.

Here, no such countervailing factors exist. The presiding juror in articulate
and forceful terms twice told the trial court that the jury was deadlocked. He also
informed the trial court that it was divided seven to two. By telling the court that the jury
reached impasse on the apportionment of negligence between defendant and plaintiff, the
presiding juror indicated that the jury was in disagreement over the complicated factual
dispute at the heart of the trial: whose negligence caused Schlimgen's death, his own or
defendant's? The evidence on that question was extensive, contradictory, often complex
and technical, and perhaps inconclusive. In such circumstances, the trial court's every
word may carry extra weight with the jury, thus imposing a heightened duty to refrain
from coercion.

The facts that lead most persuasively to the conclusion that the judge's
comments did coerce some members of the jury into changing their votes, however, are
the timing and sequence of the trial court's instructions relative to the jury's deliberations.
As noted above, after hearing two weeks of testimony, the jury began deliberating on
Friday morning. It returned on Saturday and deliberated until almost noon, when it
concluded it was deadlocked. Rather than declare a mistrial at that time, the trial court
told the jury to go home and return Monday to confer again. After several hours of
further deliberation, the presiding juror announced that the jurors had repeatedly and
systematically gone over the evidence, considered each other's interpretations of it,
discussed the reasons for their differing positions and still could not reach agreement.
Then, after the court's instruction on the importance of this jury resolving the case so as to
avoid the time and expense of a retrial, the jury returned a verdict after less than an hour's
further deliberation. We conclude that, under those circumstances, the trial court's
instruction was improperly coercive, as it evidently led a number of jurors to change their
votes, not as a result of reasoned deliberation, but with the goal of reaching the requisite
consensus so as to resolve the case. A verdict thus reached cannot stand.

Reversed and remanded for new trial.

1. In criminal cases, "ten members of the jury may render a verdict of guilty or
not guilty, save and except a verdict of guilty of first degree murder, which shall be found
only by a unanimous verdict, and not otherwise[.]" Or Const, Art I, § 11. "In civil cases
three-fourths of the jury may render a verdict." Or Const, Art VII (Amended), § 5(7).

2. Many other states have reached the same conclusion, and our research
reveals none that has considered and rejected it. See generally Gary D. Spivey,
Annotation, Verdict-urging Instructions in Civil Case Stressing Desirability and
Importance of Agreement, 38 ALR 3d 1281 (1971); Gary D. Spivey, Annotation, Verdict-urging Instructions in Civil Case Admonishing Jurors to Refrain from Intransigence, or
Reflecting on Integrity or Intelligence of Jurors, 41 ALR 3d 1154 (1972).